The Law of Facebook
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The Law of Facebook Ashutosh Bhagwat* Twenty-six years ago, Eugene Volokh published his seminal article Cheap Speech and What It Will Do, predicting many of the consequences of the then-brand-new Internet. On the whole, Volokh’s tone was optimistic. While many of his predictions have indeed come true, many would argue that his optimism was overstated. To the contrary, in recent years Internet giants generally, social media firms specifically, and Facebook and its CEO Mark Zuckerberg more specifically, have come under sharp and extensive criticism. Among other things, Facebook has been accused of violating its users’ privacy, of failing to remove content that constitutes stalking or personal harassment, of permitting domestic and foreign actors (notably Russia) to use fake accounts to manipulate American voters by disseminating false and misleading political speech, of failing to remove content that incites violence, and of excessive censorship of harmless content. Inevitably, critics of Facebook have proposed a number of regulatory solutions to Facebook’s alleged problems, ranging from regulating the firm’s use of personal data, imposing liability on Facebook for harm caused by content on its platform, treating Facebook as a utility, to even breaking up the company. Given the importance of Facebook, with over two billion users worldwide and a valuation of well over half a trillion dollars, these proposals raise serious questions. This Essay will argue that while Facebook is certainly not free of fault, many of the criticisms directed at it are overstated or confused. Furthermore, the criticisms contradict one another, because some of the solutions proposed to solve one set of problems — notably privacy — would undermine our ability to respond to other problems such as harassment, * Copyright © 2021 Ashutosh Bhagwat. Martin Luther King, Jr. Professor of Law and Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality, University of California, Davis School of Law. B.A. 1986 Yale University. J.D. 1990 The University of Chicago. Contact: [email protected]. Thanks to Jane Bambauer, Alan Chen, Chris Elmendorf, Greg Magarian, Dawn Nunziato, Ann Ravel, Eugene Volokh, Jim Weinstein, and participants in the UC Davis School of Law “Schmooze” for extremely helpful comments. Thanks also to the students at the UC Davis Law Review for putting together this excellent symposium. 2353 2354 University of California, Davis [Vol. 54:2353 incitement and falsehood, and vice versa. More fundamentally, critics fail to confront the simple fact that Facebook and other Internet firms (notably Google) provide, without financial charge, services such as social media, searches, email, and mapping, which people want and value but whose provision entails costs. To propose regulatory “solutions” which would completely undermine the business model that permits these free services without proposing alternatives and without taking into account the preferences and interests of Facebook users, especially in poor and autocratic countries where, for all of its conceded problems, Facebook provides important and even essential services, is problematic at best. Finally, the failure of critics to seriously consider whether the First Amendment would even permit many of the regulatory approaches they propose, all in the name of preserving democracy and civil dialogue, raises questions about the seriousness of some of these critics. Ultimately, this Essay argues that aside from some limited regulatory initiatives, we should probably embrace humility. This means, first, that unthinkingly importing old approaches such as a utility or publisher model to social media is wrong-headed, and will surely do harm without accomplishing their goals. Other proposals, on the other hand, might “solve” some problems, but at the cost of killing the goose that lays the golden egg. For now, the best path might well be the one we are on: supporting sensible, narrow reforms, but otherwise muddling along with a light regulatory touch, while encouraging/pressuring companies to adopt voluntary policies such as Twitter’s recent ban on political advertising, Google’s restrictions on microtargeted political ads, and Facebook’s prohibitions on electoral manipulation. Before we take potentially dangerous and unconstitutional legislative action, perhaps we should first see how these experiments evolve and work out. After all, social media is less than two decades old and there is still much we need to learn before thoughtful and effective regulation is plausible. TABLE OF CONTENTS INTRODUCTION ................................................................................. 2355 I. THE ILLS OF SOCIAL MEDIA .................................................... 2358 A. Privacy/Big Data/The Surveillance State .......................... 2358 B. Cyberstalking, Trolling, and Harm to the Vulnerable ...... 2360 C. Election Manipulation and False Political Speech ............ 2362 D. Incitement of Violence ...................................................... 2365 E. Excessive Censorship ....................................................... 2367 II. PROPOSED SOLUTIONS TO THE ILLS OF SOCIAL MEDIA ............ 2370 A. Information Fiduciaries, Data Protection, and the Nuclear Option ................................................................ 2370 2021] The Law of Facebook 2355 B. Censorship and Section 230 ............................................. 2375 C. Fact-checking and Limits on Microtargeting .................... 2378 D. Regulating Incitement, and Reconsidering Brandenburg .. 2379 E. State Actors, Utilities, and Due Process of Censorship ..... 2381 III. OBJECTIONS AND CONTRADICTIONS ....................................... 2383 A. Information Fiduciaries and Data Privacy ....................... 2384 B. Awful Content and Section 230 ........................................ 2388 C. Fact-checking and Microtargeting ................................... 2393 D. Incitement ........................................................................ 2394 E. Excessive Censorship ....................................................... 2398 CONCLUSION: HUMILITY ................................................................... 2401 INTRODUCTION Twenty-six years ago, Eugene Volokh published his seminal article Cheap Speech and What It Will Do.1 Even today, the article remains an astonishing read. It predicted the practical extinction of physical media for music,2 the explosion of video streaming,3 and more broadly the democratization of speech on public affairs.4 It also predicted the decline of information intermediaries such as the mass media,5 the possibility of increased extremist speech,6 and of filter bubbles.7 On the whole, however, the tone of the article was relentlessly upbeat. From today’s perspective, while an extraordinary number of Volokh’s practical predictions have come true, his optimism seems more questionable. To the contrary, if there is one topic on which people around the globe appear to have a consensus, it is that the Internet, and social media in particular, is the source of enormous societal problems, including the loss of privacy and the rise of “surveillance capitalism,”8 harassment and worse of women and minorities,9 and the systematic manipulation of our democracy.10 Social media has also been linked to 1 Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805 (1995). 2 Id. at 1808-14. 3 Id. at 1831-33. 4 Id. at 1833-38. 5 Id. at 1834-36. 6 See id. at 1848. 7 See id. at 1849-50. 8 SHOSHANA ZUBOFF, THE AGE OF SURVEILLANCE CAPITALISM: THE FIGHT FOR A HUMAN FUTURE AT THE NEW FRONTIER OF POWER 9 (2019). 9 See DANIELLE CITRON, HATE CRIMES IN CYBERSPACE 14 (2014). 10 See Alexis C. Madrigal, What Facebook Did to American Democracy: And Why It Was So Hard to See It Coming, ATLANTIC (Oct. 12, 2017), https://www.theatlantic.com/ technology/archive/2017/10/what-facebook-did/542502/ [https://perma.cc/3DHR-HDMY]. 2356 University of California, Davis [Vol. 54:2353 the incitement and encouragement of violence in places such as Myanmar.11 In addition to these sins mainly of omission, social media firms have also been charged with over-censoring harmless and even important material, such as the iconic “Napalm Girl” photograph from the Vietnam War.12 Far from constituting a vast forum for open, democratic debate, as the Supreme Court recently described social media,13 social media is widely viewed today as a cesspool. Furthermore, if social media is the broad culprit, there seems to be a similar consensus that Facebook, and its founder and CEO Mark Zuckerberg, are at the heart of the problem.14 The Facebook/Cambridge Analytica scandal is the public face of the failure of social media firms to protect user privacy.15 Facebook was the primary platform used by Russia to manipulate the 2016 presidential election,16 and Facebook has been under sustained attack by many, including President Joe Biden and Facebook’s own employees, for refusing to fact-check political advertisements and take down violent posts by prominent politicians.17 Facebook, and its subsidiary WhatsApp, were the primary mediums for inciting the pogrom against Rohingya in Myanmar as well as violence 11 Alexandra Stevenson, Facebook Admits It Was Used to Incite Violence in Myanmar, N.Y. TIMES (Nov. 6, 2018), https://www.nytimes.com/2018/11/06/technology/myanmar- facebook.html [https://perma.cc/LWD2-5M2R]. 12 Aarti Shahani, With ‘Napalm Girl,’ Facebook Humans (Not Algorithms) Struggle to Be